In the aftermath of the Sept. 11 attacks, the U.S. rounded up hundreds of suspected terrorists in Afghanistan and around the world. Many ended up at a special military detention center in Guantanamo Bay, Cuba, where they would face what officials called “rough justice.” Instead of trials in military, federal or state courts, enemy aliens would be prosecuted by military commissions subject to the president’s command. Wall Street Journal correspondent Jess Bravin and Lt. Col. Stuart Couch, former senior prosecutor in the Office of Military Commissions, describe the complex ethical and legal challenges dogging the Guantanamo Commissions.


  • Jess Bravin Supreme Court correspondent at the Wall Street Journal and author of "The Terror Courts."
  • Stuart Couch U.S. Marine Corps Lieutenant Colonel (Retired), and currently an immigration judge in Charlotte, N.C.

Photo Gallery: Inside The Guantanamo Bay Prison Camp

Copyright 2013 by Jess Bravin. Reprinted here by permission of Yale University Press. All rights reserved.

Read An Excerpt

Excerpt from “The Terror Courts: Rough Justice at Guantanamo Bay” by Jess Bravin. Copyright 2013 by Jess Bravin. Reprinted here by permission of Yale University Press. All rights reserved.


  • 11:06:55

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. For more than a decade, Wall Street Journal correspondent Jess Bravin has covered the controversial military commissions set up to prosecute suspected Al-Qaida terrorists at Guantanamo Bay. In a new book titled "The Terror Courts" he details the legal, political and moral issues plaguing the effort to set up a parallel system of justice for enemy aliens. He joins me in the studio along with Lieutenant Colonel Stuart Couch. He served as senior prosecutor in the office of military commissions from 2003 to 2006.

  • 11:07:42

    MS. DIANE REHMI know you have great interest in this subject so I hope you'll join the conversation. Give us a call at 800-433-8850, send us your email, follow us on Facebook or send us a Tweet. Good morning, gentlemen. It's good to have you here.

  • 11:08:06

    MR. JESS BRAVINGood morning.

  • 11:08:07

    MR. STUART COUCHGood morning, Diane.

  • 11:08:08

    REHMJess, if I could start with you, I know there were hearings last week at Guantanamo Bay for five men accused of planning and executing the 9/11 attacks. Tell us about those hearings. What kinds of hearings?

  • 11:08:30

    BRAVINWell, these are pretrial hearings. The trial is still scheduled to take place next year, if that, because there are a countless number of issues that the military commission has to resolve before they can go forward. And most of these issues have to do not with what the defendants are alleged to have done, but what the government has done or the procedure of the government has put in place to try them.

  • 11:08:54

    BRAVINSo this past week, the main issues involved discovery of hidden microphones in the rooms where the defendants were meeting with their attorneys. In recent weeks, there's been discussion over a previously unpublicized outside censor. Apparently, the CIA having control of the audio feed out of the courtroom to the public and press galleries. And over arching all these decisions or questions has been a fight over how much of the government's treatment of these detainees after they were captured and brought to CIA prisons will be disclosed in the trial when it takes place.

  • 11:09:39

    REHMHow long have they been waiting for a trial?

  • 11:09:44

    BRAVINWell, as long as ten years. Khalid Sheikh Mohammed, the self-described architect of the 9/11 attacks was captured in 2002 in Pakistan. And he was taken to CIA prisons and held there until 2006 when a Supreme Court decision led the Bush Administration to send him and the other detainees held in these secret prisons to Guantanamo.

  • 11:10:13

    REHMFrom the kinds of things you talked about earlier, those hidden microphones and the like, sounds as though there were competing missions at work.

  • 11:10:26

    BRAVINWell, that's exactly right. And that is one of the features of this whole experiment in offshore justice since 9/11 After those attacks, the Bush Administration made quite clear that gathering intelligence was its priority. But it also said that attaining justice for the victims of 9/11 and other terrorist attacks was a priority as well. It turns out that in the very extreme ways that the U.S. government pursued those goals, those two ends ended up in conflict.

  • 11:11:03

    REHMReally extraordinary. And Jess Bravin is the author of the new book "Terror Courts: Rough Justice at Guantanamo Bay." Turning to you, Colonel Couch. I know you volunteered for the prosecution unit at the office of military commissions. Talk about why.

  • 11:11:31

    COUCHWell, Diane, I guess my story began, I had come back on active duty as a reservist with the Marine Corps one month before 9/11. And I was there to work on a case involving an aircraft incident. And obviously when 9/11 occurred shortly thereafter the -- president Bush signed his military order in November of 2001 directing the use of military commissions. And so the word went out throughout the judge advocate community in the Marine Corps. that they were going to be looking to staff a prosecution effort and subsequently a defense effort to conduct these military commissions.

  • 11:12:20

    COUCHMy shtick or my role as a military judge advocate primarily has been as a prosecutor. And so that was really my interest there. Also I had been a pilot before I was a lawyer and I had a close friend of mine who was the copilot for the United 175, which was the second plane to hit the World Trade Center. So I would say at all times I had my duty as an American and as a Marine to use my skills as a prosecutor. But it was never very far lost upon me that also I had a personal reason why...

  • 11:12:58

    REHMVery personal reasons when you think about your friend. What about were there sort of religious factors involved as well?

  • 11:13:11

    COUCHWell, you know, I do describe myself as a Evangelical Christian. And, you know, my religious belief really goes with me wherever I do and whatever I'm doing. And so I never really saw this in terms of a Christian versus a Muslim type of scenario. To me this was the enemy of the United States. They attached us in a way that had not occurred since Pearl Harbor in 1941. And if there was going to be a portion of that war, if you will, against Al-Qaida that was going to be conducted in a courtroom than I wanted to be able to utilize my skills to help support that effort.

  • 11:13:57

    REHMStuart Couch, an immigration judge in Charlotte, N.C. He's a retired U.S. Marine Corp. Lieutenant Colonel. He served as senior prosecutor in the office of military commissions from 2003 to 2006. Do join us, 800-433-8850. Jess Bravin, going back, what was the reason behind bringing these suspected terrorists to Guantanamo in the first place?

  • 11:14:36

    BRAVINWell, the first reason was pragmatic. After the U.S. intervened in Afghanistan following 9/11 there were prisoners coming into U.S. custody. And the commanding general there, Tommy Franks, didn't want to have to deal with them. So there was a move to get them out of the war zone. But when Bush Administration lawyers thought about where to put them, they decided on Guantanamo Bay because they believe the legal precedence meant there would be no U.S. court oversight of what took place there.

  • 11:15:02

    BRAVINIt was what one administration official told me would be the legal equivalent of outer space, that in this place the U.S. government could deal with enemy prisoners as it wished without having to worry about them going into court and filing lawsuits, having judges second guessing executive decisions.

  • 11:15:19

    REHMIs that how you saw it, Lieutenant Couch?

  • 11:15:23

    COUCHWell, Diane, I would say that at my position I was on the -- for lack of a better term -- the worker bee level, the prosecutor. In the 2003 timeframe we were focused on what are the rules, what is our mission, how do we conduct these trials to where we can obviously obtain prosecutions. But as professional prosecutors we always have an eye on they may be subject to appellate review. And so there was a degree of notwithstanding what the regulations at that time stated would be appellate review of these processes.

  • 11:16:11

    COUCHWe, nonetheless, had an eye that someday they may be subject to appellate scrutiny. I always said a good prosecutor first and foremost must be a pessimist and you must assume that everything is going to go against you, whether it be rulings at the trial court or the appellate level. At the end of the day you should be able to have a conviction that can withstand everything going against you.

  • 11:16:38

    REHMBut there at Guantanamo you'd be freed from those kinds of appellate efforts, wouldn't you?

  • 11:16:50

    COUCHOstensibly, yes.

  • 11:16:51


  • 11:16:52

    COUCHHowever, there were those of us that always were not so certain that that was how it was going to play out.

  • 11:16:59

    REHMI see. Jess, given the secrecy surrounding Guantanamo, you were there reporting for some ten years. How difficult was it to get the information you wanted to get?

  • 11:17:16

    BRAVINWell, I didn't spend ten years at Guantanamo, just to be clear, thankfully. But over the past decade I've been there many times to report on proceedings there. Well, you know, as one of the figures in the book says, when faced with some of the disturbing prisoner treatment regimes he runs into, you know, there are no such things as secrets. They're only delayed disclosures. And so many of the things that went on there eventually came to life through interviews, sometimes through cooperation with the Department of Defense.

  • 11:17:47

    BRAVINFor instance, you know, Colonel Couch here who's the main character in the book, because his experience in these cases really touches on many of the key issues that prosecutors in the U.S. encountered over the years. You know, he was -- I had put in a request to interview some prosecutors and they gave them to me. So there's a whole way -- a whole range of ways that reporters collect information.

  • 11:18:09

    BRAVINI think stepping back a bit though, you know, the military order that President Bush signed in November of 2001, it was -- it didn't necessarily have to establish trials at Guantanamo but it imagined that it would create -- it would resurrect a legal process that was last used in the 1940s before a lot of changes in military law.

  • 11:18:33

    REHMJess Bravin. He's author of a new book. It's titled "The Terror Courts: Rough Justice at Guantanamo Bay." We'll take a short break here. More of our discussion and your calls when we come back.

  • 11:20:05

    REHMAnd if you've just joined us, here in the studio with me, Jess Bravin. He's the Wall Street Journal Supreme Court correspondent and the author of the new book titled "The Terror Courts: Rough Justice at Guantanamo Bay. And Lieutenant Colonel Stuart Couch. He's an immigration judge in Charlotte, N.C., a retired U.S. Marine Corps Lieutenant Colonel. He served as senior prosecutor in the office of military commissions from 2003 to 2006. Jess Bravin, what do you mean by using the term rough justice?

  • 11:20:54

    BRAVINWell, that's a term that actually was used by Bush Administration lawyers in describing what they wanted to accomplish with military commissions. The military order that President Bush signed really set out virtually no rules for trial. It said that no existing body of law applied to them. Any evidence that was probative, a reasonable person would come in. And that means basically just any evidence. And that aside from it being a full and fair trial without defining it, there would be essentially no review and no rights afforded to defendants. So therefore, rough justice envisioned something that would be maybe sloppy but fast.

  • 11:21:38

    REHMSloppy, but fast. Did that also include how they would extract information from prisoners?

  • 11:21:49

    BRAVINWell, not directly because there are a number of different policies that work at once. But they did work in concert because of this. The interrogation methods that were used on some prisoners at Guantanamo and certainly with the CIA prisoners were -- they were called by some people, including some U.S. officials, torture. Colonel Couch, when he got to the bottom of how evidence was developed for some of his prisoners, he also concluded that they had been tortured.

  • 11:22:16

    BRAVINAnd the rules of the military commission envisioned a preceding where evidence taken that way could be used against the defendants without the source of the information being disclosed, and possibly without the defendants even present in the courtroom. So these two pieces fit together in that way.

  • 11:22:33

    REHMBut Colonel Couch, how did you learn that any of the prisoners that were brought before you had indeed been subjected to -- I'll just use the term rough justice?

  • 11:22:50

    COUCHWell, Diane, primarily the information that I was reviewing from these detainees came in the forms of either law enforcement statements that they had given to law enforcement investigators -- the vast majority of what I was ruling were from intelligence reports. So when you look at the four corners of the intelligence report it just relates what this particular detainee said. You don't know who's asking the questions. You don't know what the conditions of that interview or that interrogation is. You don't know any of that other information.

  • 11:23:27

    COUCHThat's all well and good but as any prosecutor who's actually tried cases in court marshal or civilian trials will tell you, there still must be credibility surrounding statements of an accused. Because the Trier of fact, whether it's a military judge or a panel of officers at a court marshal or a military commission, they're going to take that into account when they're testing the veracity of what that detainee had to say.

  • 11:23:58

    COUCHSo in my experience I was limited to certain information, however in particular in one case I had a criminal investigator that had some unofficial sources on the intelligence side where he was obtaining the documents that reflected the quote unquote "the rest of the story" as to why that information was given. And it was after reviewing that information that I came to the conclusion that I did.

  • 11:24:24

    REHMAnd that conclusion was?

  • 11:24:27

    COUCHIn particular in one case, I did conclude that the man had been tortured as defined by the United Nations convention against torture and other cruel inhuman or degrading treatment or punishment.

  • 11:24:39

    REHMAnd do you know exactly how that was done?

  • 11:24:43

    COUCHFrom the materials that I reviewed it was a series of different methods, primarily sleep deprivation, climate -- you know, alterations in his climate either too hot or too cold. He was led to believe that his mother and brother had been taken into custody by the United States government and were being brought to Guantanamo Bay.

  • 11:25:08

    COUCHUltimately there was evidence that I reviewed -- and this is not -- it's since been declassified and it's been subject to the congressional inquiry -- evidence that I reviewed that made it clear that there were military psychologists and officers responsible for the detainees detention that stated he was subject to mental suffering. That is, he was having hallucinations. And from the context of the information I read it was clear that they knew that that was a probably outcome in light of the different techniques that were being applied to him. And ultimately that caused him to give the information that he did.

  • 11:25:51

    REHMAnd what was the Bush Administration saying at the time, Jess?

  • 11:25:59

    BRAVINWell, the administration said that it didn't torture prisoners and it complied with all its legal obligations. At the time it was very secretive about what it thought those legal obligations exactly were. And in their definition, if they were doing it to someone it wasn't torture in effect.

  • 11:26:17

    REHMHere is an email from Jonathan in D.C. who says, "Everything related to Guantanamo is regrettable but it does not change the fact that these people decided to kill Americans. They are sworn enemies dedicated to our destruction. And so I would like to understand why this is anything but the distasteful and unfortunate result of a war they declared on us. And I believe captured Americans would be treated worse." Jess.

  • 11:26:57

    BRAVINWell, that's a great question and there's no doubt that many of the people held there -- in fact most of the people that Colonel Couch saw to prosecute, there was significant evidence that they're guilty. We have to presume people are innocent and so forth but sure, there's plenty of evidence there. The question though is once you've captured enemy prisoners, what do you do with them? And on 9/11, as today, there is a U.S. justice system for dealing with horrible crimes. The question really is, why were military commissions established and what do they do for us that the existing justice system doesn't do?

  • 11:27:35

    REHMHow do you answer that question?

  • 11:27:37

    BRAVINWell, you know, from the -- their origin was really not as a sort of pragmatic solution to a brand new problem. It wasn't that the Justice Department or the Defense Department or the CIA or the FBI said -- went to the White House and said, you know, our court system cannot handle these new cases that are going to come. We don't know what to do. Please set up something brand new.

  • 11:27:58

    BRAVINRather it was a top down decision. The feeling in the White House was that a new state -- a new legal regime had begun after 9/11 and military commissions reflected the maximum limit of presidential power and flexibility in dealing with the enemy. And they demonstrated that. They were not a pragmatic response to a problem that arose in the conduct of a war the way that military commission had been in prior conflicts.

  • 11:28:26

    REHMAnd this opening did not lead to any quick resolution of any of these cases. As you said, 2002 and Guantanamo is still open. Colonel Couch, what do you make of that?

  • 11:28:48

    COUCHWell, I would like to address the issue raised in the email, that there is a tension here. The nature of prosecuting violations of what we call the law of arm conflict is necessarily -- they're an aspect of customary international law. When you start talking about, you know, war crimes you've implicated international law, attacking civilians, attacking civilian targets, murder, those sorts of things. At the same time that same body of international law has component to it as to the treatment of combatants that are taken captive under the Geneva Conventions that we are a signatory nation to, under the United Nations convention against torture that we are a signatory to.

  • 11:29:38

    COUCHSo, you know, the questioner said, isn't this just basically the nature of war? It is, however from our perspective prosecuting somebody for a war crime, we can't very well advocate this council of record to say, okay we're going to apply international law when it comes to the crimes that the individual has been charged with. However, we've got to completely ignore and disavow those same -- that same body of international law when it goes to the treatment of a combatant that's what we call or to combat or outside of the combat.

  • 11:30:16

    COUCHOnce -- you know, attentive international law. Once we take captive of somebody off the battlefield, they are due a certain base amount of treatment while they're in our captivity. And what was happening to them -- to a few of these individuals that I was privy to in their interrogations violated that.

  • 11:30:36

    REHMAre you sorry you got involved?

  • 11:30:43

    COUCHThat is real -- that's a tough question, Diane. I would say ultimately no. Ultimately no.

  • 11:30:48


  • 11:30:49


  • 11:30:49

    REHMEven though it came to your clear attention that the U.S. was violating its own standards of law in regard to human beings, whether they were international terrorists or otherwise.

  • 11:31:13

    COUCHWell, I have to look at it as, you know, I was a Marine Corps. officer. I was an attorney. I have an obligation to support and defend the Constitution of the United States. And also as a judge advocate you have an obligation to use your best efforts when it comes to what you advocate as a council to...

  • 11:31:35

    REHMHow do you feel about that, Jess?

  • 11:31:38

    BRAVINWell, I'm very glad that Colonel Couch took the assignment because he ended up -- even though none of the cases that he brought he got to prosecute through conclusions, he did provide a fantastic window on what this military commission's experiment is all about for me and for -- I hope for readers because in the debate over this policy we've really focused on some abstract ideas. Are military commissions good or bad because is the military the right entity to deal with terrorists? Or we've talked about torture in terms of is it ethical, is it effective?

  • 11:32:16

    BRAVINBut what Colonel Couch experienced was the real frontline impact of these policies. How are cases affected? How is American morale affected? How is the nature of military justice distorted through these policies?

  • 11:32:34

    REHMJess Bravin, Wall Street Journal Supreme Court correspondent. His new book "The Terror Courts: Rough Justice at Guantanamo Bay." And you're listening to "The Diane Rehm Show." Jess, you clearly had access through Colonel Couch. What conclusions did you draw after writing this book, witnessing what you did and hearing what you did? Has the United States made the right decision in treating these prisoners in a different way?

  • 11:33:18

    BRAVINWell, as a reporter I'm going to step back from that last question, but I do think it is important for Americans to know what exactly is going on so they can draw that conclusion for themselves. You know, in other words, the question is why are we doing this and how effective is it? And is it worth the price? Right now we are in the third iteration of military commissions. In 2006 the Supreme Court threw out President Bush's order for the very reason that Colonel Couch here just cited, that the U.S. itself had to follow international law if it was going to apply it to the enemy.

  • 11:33:53

    BRAVINIn 2006 and again in 2009 Congress authorized versions of military commissions, which each one purported to give more and more rights to the defendants to make them more and more fair, and presumably to make any convictions that occur there more likely to survive an appeal. But if you get to a system that is so close to civilian courts or courts marshal -- 93 percent is fair as a federal court, say for example -- then that caused an even greater question, the justification for setting up a brand new system in the first place. Because there are significant costs.

  • 11:34:31

    BRAVINOne of them is this. If any of these defendants were convicted in federal court or a U.S. court marshal, there'd be little question about the legitimacy of the conviction. Here, however, the very legitimacy of the court itself is constantly under a cloud. And perhaps most strikingly, last year the D.C. Circuit Court of Appeals here in Washington vacated the most famous conviction for military commissions. And that was Osama bin Laden's ex-driver, a guy named Salim Hamdan. Colonel Couch was his prosecutor for part of Hamdan's period in custody.

  • 11:35:09

    BRAVINThis was the prisoner whose case went to the Supreme Court in 2006. He was then convicted by a military commission in 2008. The military commission itself acquitted him of one charge and gave him a token sentence of five months plus time served, they were so distressful of the prosecution's claims. The prosecution had asked for 30 years to life. Even so, on appeal the D.C. circuit threw out the conviction entirely because it said the crime he was convicted of, material support for terrorism, was not an international war crime and a military commission had no authority to punish someone for something that isn't a war crime.

  • 11:35:46

    BRAVINSo this massive effort, extraordinarily expensive, using up many, many resources, damaging to a degree U.S. credibility in international forms, because even our allies are distrustful of the system, ends up with a conviction that was completely vacated. So what are we getting for such a cost? I think that's the question people should think about.

  • 11:36:11

    REHMAnd what's your response to that question, Colonel Couch?

  • 11:36:17

    COUCHWell, Diane, I would say that as far as the advocacy of the current military commissions, I am familiar with individuals both -- I'm acquainted with the chief prosecutor, Brigadier General Mark Martins, the convening authority retired Admiral Bruce McDonald, several of the defense council that are involved, as well as I've met Colonel Poe who is the presiding military judge. I can tell you that as far as the trial participants go, these individuals, irrespective of their responsibilities in the process, are dedicated that justice will be done in these military commissions.

  • 11:37:03

    COUCHI think with people like that each working for their various -- the tension that you get within any kind of judicial process, if you've got good council in each one of those positions, I think that's how justice occurs. So I'm confident that whatever convictions may result of the 9/11 conspirators will be in fact justice.

  • 11:37:25

    REHMAll right. We'll take a short break here and when we come back, I see the lines are filled. We'll take your calls. Stay with us.

  • 11:40:02

    REHMAnd welcome back. Two people are with me as we talk about what Jess Bravin has called "The Terror Courts," the new book he's written about what he calls rough justice at Guantanamo Bay. Stuart Couch served as a senior prosecutor in the Office of Military Commissions from 2003 to 2006. Let's open the phones now first to Orlando, Fla. Good morning, Samuel.

  • 11:40:42

    SAMUELGood morning. Thank you all for a very interesting conversation.

  • 11:40:45


  • 11:40:45

    SAMUELI appreciate it. My question is for Col. Couch. I'm curious, you mentioned at the onset that one of your close friends was a pilot on Flight 175 and, of course, my sympathies to that. My question, though, would be if you were then to engage in a prosecutor, wouldn't that bridge in some capacity your ability to remain objective? And doesn't that then become a search for reciprocity rather than justice?

  • 11:41:13

    COUCHWell, Samuel, I would say that anyone who's prosecuted cases, whether they be in civilian courts or in military courts, that issue does present itself from time to time. However, at the end of the day, the test that I've always kind of applaud is a similar one that we have for whether a judge should recuse them self. And that is whether the conduct of my duties could reasonably be questioned.

  • 11:41:40

    COUCHAnd I felt like at that time that notwithstanding my own experience with a friend who'd been killed in 9/11, there were many other people involved in the process that also knew people that were killed in 9/11, and that at the end of the day it's incumbent on an attorney of record. If you've got an issue that is not -- does not permit you to conduct your duties in a professional and unbiased way, then you need to decline that representation. And it never got that point for me.

  • 11:42:18

    REHMAt the same time, Col. Couch, you did talk about your religious convictions as well early on. And I wonder to what extent being a good marine and a good soldier could come into conflict with your religious beliefs.

  • 11:42:41

    COUCHWell, Diane, I would say to that point that we've got to do our duty. We're sworn to uphold and defend the Constitution of the United States. That part and parcel to that is we also have to uphold the law. And I don't believe any of the positions that I took, specifically on the Slahi case, the position I took was legally supportable. It was ethically supportable. Ultimately though it was my moral conviction as a Christian that led me to act in the way I did. And so I never saw -- I never did anything as an attorney or as an officer that I had to atone for as a Christian.

  • 11:43:21

    REHMJess Bravin.

  • 11:43:22

    BRAVINYeah, I think Col. Couch, he's being a little modest about this. I want to make clear to listeners when we talk about his religious views how they came up in this context. And they were this, that what he discovered about the treatment of this detainee, Mr. Slahi, who in addition to these, you know, various manipulations of his environment, I mean, he also faced a mock execution, he was beaten, I mean, there are other things as well, along months of months of this treatment.

  • 11:43:50

    BRAVINWhat happened was that -- and the book details this, was during a church service and during the focus on individual dignity that came up in this service, Col. Couch, you know, realized that the way that the American authorities were treating this prisoner conflicted with that, that the essential human dignity that was at the core of his faith was offended by the way this enemy prisoner, a prisoner he believed was guilty, was being treated.

  • 11:44:25

    BRAVINSo this was not a situation where his religious belief led him to do something that others might say is contrary to law. Rather, it was that instance where his faith and his sense of legal duty was completely aligned with what many would consider to be humane treatment against a policy of superiors that was to do disregard this type of abuse in order to proceed towards conviction.

  • 11:44:51

    REHMHere's an email from Jeff, who says, "I did not hear the prosecutor say anything about insuring that the accused terrorist and detainees are to be afforded due process, that these people should be considered innocent until proven guilty. He sounds as though he made up his mind they were all guilty as soon as they arrived and the judicial process began."

  • 11:45:28

    COUCHWell, I can believe that they're guilty all I want to, but as a prosecutor, my professional responsibility is to marshal the evidence. And if that evidence meets the elements of an offence, that I've got to present that to the Trier of fact, whether that be a military judge or whether it be a panel of officers in this case. It's my job to marshal the evidence, present it to Trier of fact and for them to make an informed decision as to whether those facts support a conviction under the law. So my position of his guilt or innocence, frankly, is immaterial.

  • 11:46:06

    REHMJess, here's a question for you, saying, "You just sidestepped the question of whether we should be torturing to allow the audience to decide for itself. This is a frequent problem with modern journalism. If journalists won't stand up for that basic human right, what exactly will they stand up for?"

  • 11:46:34

    BRAVINWell, the question I sidestepped, I thought, was whether military commissions as an alternative to the regular justice system should be pursued by the United States. I'm not going to sidestep the question of whether the United States should violate its own treaty obligation and violate its own statutes and torture enemy prisoners. Those are illegal and there's no question that the United States should always follow its own laws and the international laws to which it is a party.

  • 11:47:02

    REHMBut it didn't.

  • 11:47:04

    BRAVINWell, we have -- you know, we have this odd situation where the government by any account has been uninterested in holding its own authorities responsible for things they've done. But we can say this for sure. It's not just Col. Couch who found at least prisoner who was tortured in his opinion. The head administrator of Military Commissions, a Bush administration appointee, dismissed charges against the alleged 20th hijacker because she said publicly that we tortured him.

  • 11:47:33

    BRAVINAnd she determined that because of U.S. law forbidding torture, it would be improper to prosecute someone who had been tortured. And this is someone who -- Col. Couch worked on that case, other people did as well, someone who there's significant evidence that had he made it through Customs, he would've been on United Flight 93. So, you know, the United States is already paying a price for torture in that case by being unable to prosecute someone who might be guilty of a horrible offense.

  • 11:48:03

    REHMAll right. Let's go to Indianapolis. Good morning, Richard.

  • 11:48:08

    RICHARDGood morning, Diane. My question is twofold. First off, when an individual is captured in a conflict and they're non-uniform, non-regular combatant, I believe there's a distinction as to how they're treated, to whether or not they're considered POWs. And if we are going to consider them POWs, then should they not be held to the end of hostilities? And at what point and time would you consider the end of hostilities in this conflict to be since there will be no formal prisoner exchange, no formal government to turn them over to or any mechanism that we can go for? And usually in those situations those prisoners are held either until the end of hostility or until a proper prisoner exchange.

  • 11:48:47

    REHMAll right. And, Richard, we were talking about that very thought during the break. Col. Couch.

  • 11:48:54

    COUCHRichard, that's an excellent point. And, frankly, that is a point and a nuance of international law that is at play here where I think we see, frankly, the inadequacies of international law given the current environment that we find ourselves in. The United States Supreme Court has upheld that tenant of international law that the United States can detain these prisoners until the end of hostilities. Now, that said, that begs the question, what is the end of hostilities?

  • 11:49:29

    REHMYou bet.

  • 11:49:30

    COUCHAnd from my perspective, that goes completely back in the lap of our enemies. And they're the ones that control the end of hostilities as I see it in this war of religious ideology that is at the root of it.

  • 11:49:46

    REHMDo you agree with that, Jess?

  • 11:49:47

    BRAVINWell, I think that -- and this is -- you know, my own editors get confused about this, as do I sometimes. There are really two parallel legal processes at work. The military commissions that are the subject of this book are aimed at punishing people for bad things they did in the past. The kind of detention that Col. Couch is talking about here is really to prevent them from doing bad things in the future...

  • 11:50:09


  • 11:50:09

    BRAVIN...and one is punitive, one is preventative.

  • 11:50:12

    REHMJess Bravin, his new book is titled "The Terror Courts: Rough Justice at Guantanamo Bay." And you're listening to "The Diane Rehm Show." And let's take a caller in Hamlin, N.Y. Good morning, John, you're on the air.

  • 11:50:35

    JOHNGood morning, Diane. Thank you for taking my call.

  • 11:50:37


  • 11:50:38

    JOHNI'm going to be interested in reading this book. I'm a member of Amnesty International. Years ago -- I address this to the author and the colonel. I read a book called "Time Bomb" by a guy named Grant McKee about the Guildford Four trial. And as you may or may not know, they were three northern Ireland guys and an English woman that were tried. They were tortured similar to what the colonel was saying what was going on, threatened their families were going to be brought in, that the police were threatening. And this, you know, in the U.K. at the time was a time of terror for them. I just, you know, that whole terror concept is rather, you know, weird.

  • 11:51:22

    JOHNBut what I'm asking, this has gone on before, whether in the world or, you know, in our own country. We tortured people over in Vietnam to get information stuff. Where do we stand up on basic principles of human rights? And where do we learn from history that this stuff just doesn't work really?

  • 11:51:44

    REHMThat's an interesting point. Was there a time when you saw this rough justice at work where it did produce results?

  • 11:52:01

    BRAVINYeah. I mean, that's the thing, I mean, torture, you know, sometimes does it work? Yes, it does work sometimes. I mean, that's what we saw in the case of Mr. Slahi who Col. Couch talked about before. And that is why Col. Couch refused to bring charges because the only stream of evidence against him were statements that were taken through torture. And Col. Couch concluded that our laws simply required that evidence could not come in.

  • 11:52:28

    REHMSo what do we learn from this experience, Col. Couch? Do we learn that there are other better ways to extract information? That the entire system of setting up these special military commissions at Guantanamo, did they work? Did they not work?

  • 11:52:55

    COUCHMy experience with some of the most powerful evidence, the most useful evidence that I came in contact with came from that law enforcement rapport building type interviews and interrogations. And I do know that rapport building interrogation construct is also used on the intelligence side. It's difficult information to obtain. It's very painstaking, takes a long time to get it.

  • 11:53:21

    REHMYeah, yeah.

  • 11:53:23

    COUCHIt requires an incredible knowledge of culture and of the many myriad connections of the organization that we now know as al-Qaeda. It requires a lot of those things and also a certain degree of salesmanship on the part of the interrogator. However, the information that I saw that came out of those types of rapport building interrogations, particularly one FBI agent who was a native Arabic speaker, was just invaluable.

  • 11:53:53

    COUCHNow, balanced against that, the counter to that is, but that kind of information is not timely. Timeliness is important on the intelligence side to cut all future threats. So there, as I see it, we still have this tension between the law enforcement, or justice side, and the intelligence side. And we need to work through these things to try to get some commonality that are consistent with American values that respect the inherent dignity of every human being.

  • 11:54:22

    REHMHow did we manage to get the information as to Osama bin Laden's location? Was that through, quote, "enhanced interrogation," or was it through cooperation?

  • 11:54:41

    BRAVINWell, I don't know. But I do know this, which is that if prisoners were tortured, there is and sometime a strong price to pay, which is damaging or even destroying prosecution against them. There is an interesting irony, though. I think it's worth pointing out. Which is that if the goal is to convict the worst criminals, and let's say the Khalid Sheikh Mohammed is one of them, you don't need to torture him or to set up a special trial system that throws out basic rights against him because the most committed fanatics are not trying to evade punishment once they're captured. They're proud of what they did. They did it for political or ideological reasons.

  • 11:55:18

    BRAVINIf you -- I mean, I've heard Khalid Sheikh Mohammed try to plead guilty and claim responsibility for 9/11 and other crimes in the Guantanamo courtroom. So if the goal is holding someone to account, you don't need to torture them or create a brand new court system. If the goal is something else, then I think we need to be clear about what that is and what price it's worth paying to get it.

  • 11:55:38

    REHMHow much longer do you think it will be before that Guantanamo facility is closed down?

  • 11:55:49

    BRAVINWell, you know, the president came in saying he would want to close it. He's now entering his second term. It's still going strong. In a sense it's almost like the legal equivalent of a super fund site. It's this place where things have happened, the way to remediate them seems unclear, the current chief prosecutor, Gen. Martins, I don't think anyone could envy the job he had when he showed up and found years and years of misconduct or questionable conduct creating a legal tangle that would trouble anyone. When is it going to close? When will they resolve these cases? I would love to find someone who knows the answer to that.

  • 11:56:25

    REHMHow many people remain there as prisoners, Jess?

  • 11:56:30

    BRAVINThere are about 140. About a third of them have been identified as targets of prosecution in some way. The others, some of them have been cleared for release, but there's no political or administrative way to get them out of there. The others fall into that category called other.

  • 11:56:46

    REHMJess Bravin, his new book is titled "The Terror Courts: Rough Justice at Guantanamo Bay." Stuart Couch served as senior prosecutor in the Office of Military Commissions from 2003 to 2006. Thank you both.

  • 11:57:09

    BRAVINThanks, Diane.

  • 11:57:10

    COUCHThank you, Diane.

  • 11:57:10

    REHMAnd thanks for listening all. I'm Diane Rehm.

  • 11:57:14

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